Ali and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 2168

Ali and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2168 (21 July 2023)

Division:GENERAL DIVISION

File Number(s):2022/2110      

Re:Ahmed Ali  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member J Rau SC

Date:21 July 2023

Place:Adelaide

The Tribunal affirms the decision under review.

......................[sgnd]............................  

Senior Member J Rau SC

CATCHWORDS

CITIZENSHIP – application for Australian citizenship– application for citizenship refused – whether Tribunal is satisfied Applicant is of ‘good character’ for the purposes of s 21(2)(h) – false identity information discovered in the context of a citizenship application – decision under review is affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

BOY19 v the Minister for Immigration and Border Protection [2019] FCA 574

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Jones v Dunkel (1959) 101 CLR 298

Irving v the Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

SECONDARY MATERIALS

The Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act

Citizenship Instruction 17 – Decision-making under the Citizenship Act
Revised Citizenship Procedural Instructions

REASONS FOR DECISION

Senior Member J Rau SC

21 July 2023

1. By application dated 15 March 2022,[1]  the Applicant seeks review the decision of a delegate of the Respondent (“the “Minister”) made on 17 February 2022, to refuse to grant Australian Citizenship, pursuant to section 24 of the Australian Citizenship Act 2007 (Cth) (the “Act”).

   [1] Exhibit 4, T1, p 1.

2. The application for review is made in accordance with section 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (“AAT”) for review of a decision made under section 24 of the Act.

   BACKGROUND

3. The Applicant is 36 years of age and is a citizen of Pakistan.

4. On 12 November 2007, the Applicant was listed as a dependant applicant in an XB202 Special Humanitarian visa application, sponsored by Ali Ramezan (“the 2007 application”).

5. In this application, the Applicant, amongst other things, is falsely claimed to be Hedayatullah Ramezan, a 17-year-old Afghan citizen, born on 1 January 1990.[2]

   [2] Ibid, T3, p 14.

6. As it turned out, the 2007 application was refused on 26 November 2007.

7. The matter would have rested there, but for investigations conducted by the Respondent in the context of this application, which exposed this attempted fraud.

8. On 18 April 2014, the Applicant arrived in Australia holding a Partner (Provisional) Offshore subclass UF 309 visa.[3] This visa application process was totally separate from the 2007 application. The Applicant applied using his true identity and personal details.

   [3] Ibid, T3, pp 11-12.

9. On 30 August 2014, the Applicant’s Second Stage Partner visa commenced.[4]

   [4] Partner (Migrant-Applicant Onshore) visa subclass BC 100 and Exhibit 4, T3, p 12.

10. On 15 January 2016, the Applicant’s Onshore Partner visa subclass BC 100 was granted.[5]

    [5] Exhibit 4, T3, p 12.

11. On 18 June 2018, the Applicant lodged an application for citizenship by conferral.[6]

    [6] Ibid, T8, pp 114-172.

12. On 22 December 2021, the Applicant was invited by the Department of Home Affairs (“the Department”), to comment on adverse information.[7] In essence, this material suggested that he had been party to a fraudulent attempt to obtain a visa in the 2007 application. The documents before the Tribunal disclose that Ali Ramezan completed a sponsorship application, which included the Applicant, under a false name. This included his photograph. There was also a fake Afghan document confirming the Applicant’s false identity. There is no doubt that this involved an elaborate, coordinated attempt at deception, designed to unlawfully procure a visa for the Applicant. It is likely that some transaction(s) occurred to secure these criminal services.

    [7] Ibid, T12, p 187.

13. On 20 January 2022, the Applicant provided a response to the request.[8]

    [8] Ibid, T13, p 193.

14. The Applicant asserts that the Respondent’s letter of 22 December 2021, was the first that he had ever heard of the 2007 application. He speculates that his late father must have arranged this without telling him. He says that he has since spoken with his mother about this but says that she seems to know very little about it. I note that she has not provided a statement to the Tribunal and was not called as a witness. It was submitted that for “cultural” reasons, she was apparently not part of the decision to make the 2007 application. She is said to be now old and frail. I am concerned about the lack of direct evidence before the Tribunal about her knowledge of the 2007 application. The Tribunal only has submissions from the Applicant’s counsel, or heresy evidence from the Applicant. This lacuna could easily have been cured by her providing a statement and if required, being called as a witness.

15. The sponsor in the 2007 application Ali Ramezan, lives in Adelaide. He could have enlightened the Tribunal about exactly what happened in 2007. However, he did not provide a statement and he was not called to give evidence. Counsel for the Applicant said that Mr Ramezan was frightened of getting into trouble and there were “cultural” reasons why the Applicant did not call him. This is unfortunate, because it is highly likely that Mr Ramezan could have resolved many of the unanswered questions in this case. There was no material before the Tribunal to show that he had been requested to give evidence, or that he had refused. That said, it is not difficult to imagine why Mr Ramezan may be reluctant to give sworn evidence about his involvement in what appears to have been, a criminal enterprise. The enterprise had this character, regardless of whether the Applicant’s was involved.

16. The case of Jones v Dunkel,[9] holds that an adverse inference may be drawn against a party who fails to call a witness, where that witness might be expected to support their case. As stated by Kitto J:

    “But what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The jury should at least have been told that it would be proper for them to conclude that if Hegedus had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff's evidence.”

    [9] (1959) 101 CLR 298.

17. If the Applicant had no idea about the 2007 application, until this was drawn to his attention by the Respondent on 22 December 2021, he is in the context of this application, an innocent victim of an attempted fraud against the Respondent, perpetrated by others, albeit for his benefit. This should not be held against him.

18. If, however he was involved or complicit, this would reflect badly on his character. As would his subsequent exculpatory explanations.

19. The Applicant says that he was ignorant of the 2007 application.

20. The underlying question for determination by the Tribunal, is whether he was involved or complicit in the 2007 application.

21. On 17 February 2022, the delegate of the Minister of Home Affairs decided to refuse the Applicant’s application to become an Australian citizen. This refusal was based on an assessment that the Applicant was not, at the time of the decision, a person of good character contrary to section 21(2) (h) of the Act. The delegate found that the Applicant had provided false personal information about himself and his family and had, as such, engaged in “dishonest behaviour in order to secure a migration outcome”. The delegate found that this conduct was “not indicative of someone who is of “good character”.

22. The Respondent now accepts that the Applicant is who he claims to be.

    ISSUE

23. The only issue to be determined by the Tribunal is whether the Applicant is of good character for the purposes of section 21(2)(h) of the Act. 

24. This in turn becomes a question of what, if anything, he knew of the 2007 application before 22 December 2021.

    LEGISLATIVE FRAMEWORK

25. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Where the Minister receives such an application, the Minister must approve or refuse to approve the person becoming an Australian citizen.

26. Section 24(1A) of the Act provides that the Minister must not approve a person to become an Australian citizen unless that person is eligible under section 21(2)(8) of the Act. Section 21(2)(h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the decision on the application.

27. In BOY 19 v the Minister for Immigration and Border Protection (“BOY 19”)[10], O’Bryan J considered the requirement that a decision-maker must be satisfied of an applicant’s good character. There is neither a presumption of good character, nor bad character to be displaced. A decision-maker may not be satisfied that a person is of good character without necessarily having to come to the conclusion that a person is of bad character:

    “Section 21 (2)(h) requires the Minister to form a judgement as to whether he or she is satisfied that the applicant for citizenship is of good character. The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof in apposite. Second, the matter of which the Minister must be satisfied, the applicant’s good character is not a fact to be proven but an opinion requiring an evaluative judgement. A standard of proof, such as a balance of probabilities, is incapable of application to such an opinion……

    It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character.”[11]

    [10] [2019] FCA 574.

    [11] Ibid at [54] and [55].

28. The term “good character” is not defined in the Act; however, there is guidance on the application of the good character requirement in the Citizenship Policy (“the Policy”). The Tribunal is not bound to apply the Policy; however, the Tribunal should have regard to and apply the Policy unless there are good reasons not to do so. In the circumstances of this matter, the Tribunal has not been made aware of any such reason to depart from the Policy.

29. The Policy relevantly says the following:

    CPI 15 - Assessing Good Character under the Citizenship Act

    …

    Definition

    The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):

    Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

    The phrase ‘enduring moral qualities’ encompasses the following concepts:

    - characteristics which have endured over a long period of time;

    - distinguishing right from wrong; and

    - behaving in an ethical manner, conforming to the rules and values of Australian society.

    The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.

    A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.

    Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.

    For example, in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, DP Breen discussed the role of the character requirement in a citizenship application (at [8]):

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.

    Community standards

    In Zheng v Minister for Immigration and Citizenship [2011] AATA 304, DP Forgie found the Preamble to the Act could provide assistance in identifying what the Australian society considers to be right and proper behaviour for the purposes of assessing good character.

    The Preamble to the Act sets out the meaning of Australian citizenship:

    Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

    The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

    a)by pledging loyalty to Australia and its people; and

    b)by sharing their democratic beliefs; and

    c)by respecting their rights and liberties; and

    d)by upholding and obeying the laws of Australia.

    After considering the text of the Preamble, DP Forgie stated:

    In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.

    Government, both Federal and State, initiatives, such as the making of new laws or reviewing of existing laws, campaigns to raise awareness in the community, the appointment of Royal Commissions to investigate certain matters and make recommendations to government on issues that affect the community should be taken into consideration where relevant, as these issues are reflective of Australian community expectations.

    Such issues could be, for example:

    -media campaigns about domestic violence, which reflects both the community’s and the government’s stance on this issue;

    -the Royal Commission into Institutional Responses to Child Sexual Abuse;

    -State and Territory government approaches to Outlaw Motorcycle Gangs (OMCGs) and youth street gangs; or

    -new laws regarding national security and terrorism.

    These initiatives indicate that domestic violence and child sexual abuse in any form is not acceptable in the Australian community. Behaviour that impinges on the safety of, or creates fear in the community, is not acceptable. Persons taking part in, or condoning, such activities do not respect the rights and liberties of others in the community.

    The citizenship decision-maker must assess whether the decision-maker is satisfied that the applicant is of good character at the time of decision. Such an applicant is likely to uphold the commitment they will make when making a Pledge to become an Australian citizen.

    Australian values statement

    Another identification of community standards can be found in the Australian values statement, which requires applicants to confirm that they will respect the values of Australian society and obey the laws of Australia.

    The values statement signed by applicants for provisional or permanent visas also acknowledges that, if the applicant goes on to become an Australian citizen, they will enjoy reciprocal rights and responsibilities and that these responsibilities include obeying Australian laws.

    While a values statement will not have been made by all citizenship applicants (applicants for citizenship by descent, adoption, resumption and those who acquired permanent residence before 17 October 2007 will not have signed the statement), it is a clear statement of community expectations.

    4.4 An applicant who is of good character

    An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.

    As a general proposition, a person who is of good character would:

    -respect and abide by the law in Australia and other countries;

    -be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);

    -not practise deception or fraud in dealings with the Australian Government, or other organisations, for example

    ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or;

    oother material deception during visa and citizenship applications;

    oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;

    oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;

    oconcealing criminal convictions;

    ofraud against the Commonwealth such as tax fraud or Centrelink fraud;

    ogiving false names and/or addresses to police;

    -not be the subject of any extradition order or other international arrest warrant;

    -not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);

    -not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;

    -not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide;

    -not be involved in terrorist organisations or acts of terrorism overseas or in Australia.

    Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.

    It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

    …

    4.11 Weighing information

    In addition to the general principles of good decision-making set out in Citizenship Instruction 17 – Decision-making under the Citizenship Act, officers assessing whether an applicant is of good character should as a general proposition:

    -characterise the nature of any offence or behaviour;

    ois the offence serious or minor?

    odid the offence harm other people?

    owho were victims?

    ois there a pattern of behaviour?

    owas it a one off incident?

    owere there extenuating circumstances?

    -consider any associations with people or organisations of concern;

    -consider any mitigating circumstances;

    olength of time since the offence was committed

    oage at time of offence

    obehaviour since completing prison sentence or obligations to court

    oremorse regarding their offending behaviour

    ocommunity support (referee reports etc)

    ochanges in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.

    -weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.

    4.12 Mitigating Factors – could the applicant be of good character despite the adverse information

    The discussion below expands on the points made above in section 4.11. The discussion focuses on criminal offences, but the principles are also relevant to any general conduct that suggests that the applicant is not of good character.

    -What is the length of time since the offence and conviction?
    There can be a long delay between offence and conviction. Each case should be assessed on its merits. Consider the seriousness of the offence, the nature of the offence, whether another person was harmed, and the rehabilitation process. In the case of a serious offence, a significant amount of time may have to pass before a decision-maker could be satisfied that the person is now of good character

    -Has the applicant accepted responsibility and shown remorse for their conduct?

    -How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?

    There is no ‘rule of thumb’ that determines how much time must pass for a person to re-establish good character. Each case must be assessed on its merits.

    4.13 Weighing up the evidence

    The question for decision-makers is whether or not the decision-maker is satisfied that the person is of good character at the time of decision on the citizenship application. This requires the decision-maker to weigh up all of the relevant evidence.

    Decision-makers should consider the following matters:

    -Would a person of good character behave the way the applicant did?

    -What evidence is there to demonstrate that the applicant has upheld and obeyed the law?

    -Has the applicant behaved in accordance with Australia's community standards, such as obeying the law?

    -Does the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?

    -Has the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?

    -Are there any other factors that are relevant to an assessment of the applicant’s character?

    In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:

    "a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness."

    A decision-maker needs to look holistically at an applicant’s  behavior over time. The amount of time depends on the merits of each case, but in most cases will go back prior to any visa application if the person is applying for citizenship by conferral.

    If a person has committed a serious offence (such as murder, sexual assault, war crimes, crimes against humanity, genocide or crimes against children) the period would be much longer, potentially over a period of many years.

    Depending on the offending and the circumstances, it may be extremely difficult for a decision-maker to be satisfied that a person is of good character, even after the passage of many years.

    EVIDENCE BEFORE THE TRIBUNAL

1. In the 2007 application, the Applicant was listed as a dependant applicant in an XB202 Special Humanitarian visa application, sponsored by Ali Ramezan. A photograph of the Applicant was provided. A relevant excerpt from this application states:

   “Why did you leave that country?

   My mother, brother, father and other siblings and I lived in Ghazni Province, Afghanistan in an area where we were surrounded by Pashtoons. We are Hazaras and Muslim Shia’s.

   As a result of the place in which we lived we were always fearful that we would be attacked by the Pashtoons as they are full of hate for Hazaras and Muslim Shi’as.

   Our chief fear was attack, persecution and discrimination at the hands of the Taliban. The Taliban came to our house on several occasions trying to find our father but on the first two occasions our father was not at home. On the third occasion he was at home and mostly severely beaten and taken away. He was killed by the Taliban. This occurred in 1995.

   Shortly after our father was killed my elder brother Ali Ramezan fled to Pakistan as he was most fearful that he would be the next victim of the Taliban following the death of out father.

   After Ali fled from Afghanistan the Taliban kept returning to our house looking for Ali and frightening us in the extreme. We were suffering deeply.

   Members of our family were supporters of the Hezbe Wadhat Party whom they regarded as enemies and hated us for our ethnicity and our religion.

   It became increasingly more dangerous for members of my family and I to remain in Afghanistan as we were extremely fearful for our lives at the hand of the Taliban. We decided to flee the country and cross the border into Pakistan where we presently live.

   Life in Pakistan is extremely difficult, and we are now faced with the Taliban in this country as well. We are in Quetta where the Taliban are very strong and there have been threats of rockets being thrown in the direction of the Hazaras and Muslim Shi’as who live in this particular city. There have been many threats by the Taliban to kill the Hazaras and Muslim Shi’as and we are now extremely fearful for out lives in this country and in particular in Quetta.

   A suicide bomber blew himself up in a mosque in Quetta when people were praying both inside the mosque and outside. On one occasion Shi’a people were having a religious ceremony and the Taliban attacked and 12 people were killed. At that time some of my siblings were in the city and my mother was at home. There have been three such attacks in the last two years in Quetta.

   My brother, my mother and I live in constant fear of persecution and discrimination from the Taliban. It is extremely dangerous in Pakistan for us. However, we have no alternative as Afghanistan is more dangerous for us because of the hatred of the Taliban towards us. Additionally the area in which we lived is surrounded by Pashtoons who themselves hate and despise the Hazaras and Muslim Shi’as. We cannot return there.

   How did you leave that country?

   We crossed the border from Afghanistan in to Pakistan quite illegally as we had no documentation for this purpose.

   What do you believe may happen to you, or the people included in your application if you were to return to that country?

   Should we be forced to return to Afghanistan I have no doubt that we would be once again threatened, persecuted and discriminated against as Hazaras and Muslim Shi’as. Our father was killed at the hand of the Taliban. Our brother fled that county and is now in Australia. Following Ali Ramezan’s departure from Afghanistan further raids were made on our house by the Taliban because our brother had fled the country. I have no doubt that we will be further punished by the Taliban should we be forced to return to out home country. It would be likely that we would be more severely punished in view of the fact that we escaped from Afghanistan to Pakistan. We would deeply fear for our lives should we be forced to return.

   Who do you think may harm or mistreat you if you go back to that country?

   I have no doubt that we would be harmed and mistreated by the Taliban who are increasingly gaining strength, power and influence in Afghanistan. We would be extremely fearful of them together with the Pashtoons who hate and despise Hazaras and Muslim Shi’as and who surround the home area in which we have all lived. The Taliban have killed my father. Some of my brothers have been beaten by the Taliban. We would be extremely frightened that we ourselves would suffer.

   Do you think the authorities of that country can and will protect you if you return to that country?

   The authorities of that country led by Hamid Karzai are predominantly Pashtoons and hate and despise Hazaras and Muslim Shi’as. I do not believe that they would provide any assistance for us should we need it. I believe they would rather kill us than protect us. However the government of Hamid Karzai is not able to protect people beyond the borders of Kabul even if they so desired. We would not receive any protection from the authorities. We would be at the mercy of the Taliban who have already killed our father, beaten up our brothers, raided our house and caused us extreme fear or our lives.

   It is to be noted that my mother and brother and I live in Pakistan in extremely difficult circumstances unable to obtain employment. We are most fearful we may be harmed or abducted as we go to and from our Language School each day. Living conditions are extremely poor and we are even in this country fearful for our lives at the hand of the Taliban. We are existing, not living. Without the regular financial assistance from our family in Australia we would not survive. We are the victims of the Taliban both in Pakistan and Afghanistan. We fear for our lives. Please grant us permanent residence in Australia so that we may rejoin our family and live in peace and security in that great country.”[12]

   [12] Exhibit 4 at [26]-[30].

2. The Applicant is also recorded by the Respondent, as having provided the following information:

   “A physical copy of an Afghan identity document (including photo) for yourself in original language – No 675563

   Information listed on the application form for an Afghan passport issued to you – passport No: 2233 – Date of issue – 29 October 2007 – Date of Expiry 2008 – issuing authority Consulate General of I.R Afghanistan – Quetta

   Your family composition included:

   Included in the application as migrating

   Enayatullah Ramezan   01 January 1988        Brother
   Taj Ramezan   01 January 1937        Mother
   Hedayatullah Ramezan   01 January 1990        Yourself
   Ali Ramazan   01 January 1962        Sponsor – Brother

   Other family listed but not included as migrating:

   Father – Boston Ali                -          01 January 1932        Deceased
   Brother – Ali Madad               -          31 December 1978     Pakistan
   Brother Ali Ahmad                 -          31 December 1980     Pakistan
   Brother – Abdul Khaliq          -          31 December 1986     Iran
   Brother – Abdul Wahid          -          31 December 1984     England
   Brother – Habibullah              -          31 December 1986     Iran

   On 09 June 2013 you lodged a Partner Provisional Visa Subclass UF309 application in the name of Ahmed ALI (04 June 1986) – Citizen of Pakistan. You were sponsored by your spouse Ms Sajida Zaffar who arrived in Australia as a citizen of Afghanistan.

   In this application, you claimed you were not known by any other name and had never previously applied for a visa to Australia.

   Your family composition consisted of:

   Father:            Ali Ramezan              (01 January 1949)
   Mother:           Kharaj Begum            (01 January 1956)
   Brother:          Barket Ali                   (01 January 1978)
   Brother:          Reza Ali   (01 January 1992)
   Brother:          Mansour Ali                (01 January 1981)
   Brother:          Zakir Ali  (01 January 1979)
   Brother:          Shabir Ali  (01 January 1984)

   On 15 January 2016 you were granted a BC100 Permanent Partner visa as the Second Stage to your UF309 temporary Partner Visa application.

   No further information was provided in the Second Stage of this visa in regards to your family composition.

   On June 2018, you lodged an application for Australia Citizenship – general eligibility. In your citizenship application at Q3 you ticked “No” to “Are you known by any other names’

   Your family composition included:

   Father:            Ali Ramezan              (01 January 1949) - Deceased
   Mother:           Kharaj Begum            (01 January 1956)
   Brother:          Barkat Ali  (01 January 1976)
   Brother:          Raza Ali  (25 January 1992)
   Brother:          Manzoor Hussain       (01 January 1981)
   Brother:          Zakir Hussain             (01 January 1975)

   Brother:          Shabir Hussain          (20 March 1983)

   On 22 December 2021, you were given opportunity to comment on, or provide an explanation about, adverse information before the Department that may lead to a decision to refuse to approve you becoming an Australian citizen.

   On 20 January 2022, the Department of Home Affairs received a response sent from you sent from your IPhone thanking the Department or giving you an opportunity to comment and provide explanation in regards to adverse information.

   You apologised and stated that the information in regards to your identity you provided back in 2007 was untrue. You further stated, your father was worried about living in Quetta Pakistan due sectarian killing targeting minorities and wanted someone to sponsor you abroad (overseas).

   You stated in order to find a sponsor your father acquired an Afghani passport for you without your knowledge and organised sponsor. 

   You declared that your true name and Identity is
   Ahmed ALI – Born on 04 June 1986
   Place and country of birth: Quetta, Pakistan

   Family composition

   Ramzan Ali                (01 January 1949)      Father
   Kharaj Begum            (01 January 1956)      Mother - Deceased
   Barkat Ali                   (01 January 1976)      Brother
   Raza Ali  (25 January 1992)      Brother
   Manzoor Hussain       (01 January 1981)      Brother
   Zakir Hussain             (01 January 1975)      Brother
   Shabir Hussain          (20 March 1983)        Brother

   You stated that “I know it’s a serious offence to provide false information therefore, I apologise once again for misleading information”.

3. I do not read the above quoted passage to be an unambiguous admission of personal wrongdoing. It needs to be read in the context of the whole passage from which it is taken.[13] English is the Applicant’s second language. The passage may be read as a general expression of regret, that false information was provided by others.

   [13] See para 34.

4. A Delegate of the Department proceeded to consider the information provided and determined:

   “I have undertaken a critical exercise of examining your responses and explanation you have given in response to the Invitation to comment.

   I have considered the admission as you have applied for multiple visas and been residing in Australia for a period of 8 years. You have chosen not to come forward with this information and instead misled the department during all stages pf your visa process and in your application for Australian citizenship. It was only when you were invited to comment on adverse information before the department that you were prepared to admit you hold another identity before the department.

   In 2007, you provided an identity to the department in the name Hedayatulah Ramezan – 01 January 1990 a citizen of Afghanistan. To support this identity you provided several identity documents such as a Taskiras (Taskera – Afghan Identity document) and details of an Afghan passport in your name.

   In 2013 you provided an identity to the department in the name of Ahmed ALI – 04 June 1986 a citizen of Pakistan. To support this identity you have provided several identity documents such as a Pakistan Birth Certificate and passport.

   Based on the above information I find you have two identities before the department and therefore cannot be satisfied that the current identity you have presented to the department is your true identity for the purposes of 24(3) and consequently prohibited from approving you to become an Australian citizen.

   Subsection 24(4) of the Act provides that I must not approve a person becoming an Australian citizen at a time when there is adverse or qualified security assessment in force under the Australian Security Intelligence Organisation Act 1979 that the person is directly or indirectly a risk to security. If the person is not the citizen or national of any country and was born in Australia or, if born outside Australia, had apparent at the time of their broth who was an Australian citizen, this prohibition will not apply.”[14]

   [14] Exhibit 4, T3, pp 14-16.

5. The Applicant does not now deny the truth of the facts set out above, save and except for any involvement in the 2007 application. His explanation, contained in an email to the Department, dated 20 January 2022, is as follows:

   “Firstly, thank you for giving me the opportunity to comment and provide explanation in regards to adverse information which was provided back in 2007.

   I am really sorry to say that the information provided back in 2007 in regards to my identity was not true.

   I know my dad was worried and wanted someone to sponsor me abroad because at that time the situation in Quetta, Pakistan was not safe as it is still now due to sectarian killings and targeting minorities. Therefore, to be safe my dad somehow found Al Ramzan and negotiated to sponsor me to Australia. In order to sponsor me to Australia my dad made an Afghani passport which I wasn’t aware of.

   I truly declare that my full name is Ahmed Ali and date of birth is 04/06/1986. My true identity is Pakistani and birth place is Quetta.

   My family composition consisted of:

   Father: Razman Ali (01/01/1949) – Deceased Mother: Kharaj Begum (01/01/1956) Brother – Barkat Ali (01/01/1949) Brother – Raza Ali (25/01/1992) Brother – Maznoor Hussain (01/01/1981) Brother – Zakir Hussain (01/011975) Brother – Shabir Hussain (20/03/1983)

   To support the above statements, I have provided all the supporting documents when I lodged my citizenship application.

   I now its a serious offence to provide false information therefore, I apologise one again for misleading information.

   Please let me know if you require any further information.”[15]

   [15] Ibid, T13, p 193.

6. The evidence before the Tribunal is consistent with the statement above. This leaves open the possibility that the Applicant was, in some possibly non-specific way, aware of or complicit in his father’s plans.

   CONCLUSION

7. The question for the Tribunal is therefore essentially this, in the light of his history and the considerations set out above, has the Applicant demonstrated “good character” sufficiently for the Tribunal to be “satisfied” that the Applicant is a person of “good character”?

8. To answer this question in the negative, it is not necessary for the Tribunal to be satisfied that the Applicant is of “bad character”. To answer this question in the affirmative, “it is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character”.[16]

   [16] BOY 19.

9. I note that the Policy in describing “enduring moral qualities” refers to them as, amongst other things, “encompassing the following concepts:

   (a)Characteristics which have been demonstrated over a very long period of time

   (b)Distinguishing right from wrong

   (c)Behaving in an ethical manner, conforming to the rules and values of Australian society.”

10. A consideration of all of the evidence against the Policy leads to the following relevant findings:

    a)There is no evidence of the Applicant having raised any character concerns since arriving in Australia in April 2014, aside from his alleged ongoing non-disclosure of the 2007 application.

    b)The only character question raised by the Respondent concerns the Applicant’s involvement or possible complicity in the 2007 application, and his subsequent failure to reveal, or admit to it.

    c)If the Applicant was indeed unaware of the 2007 application until he was advised of it by the Respondent on 22 December 2021, he could not reasonably have been expected to have earlier disclosed it. He cannot be criticised for failing to have disclosed facts, of which he was unaware.

    d)There is no direct or unequivocal evidence before the Tribunal to give rise to a substantial doubt about the Applicant’s character, aside from his alleged participation in and subsequent non-disclosure of, the 2007 application and possibly his ambiguously worded apology for the 2007 application.[17] His alleged non-disclosure is, as observed above, also consistent with him being innocent of any wrongdoing.

    e)The Applicant had two potential witnesses who may have assisted the Tribunal, by giving evidence regarding the circumstances surrounding the 2007 application.

    f)Mr Ramezan did not wish to participate in the proceedings due to “cultural reasons” and a fear of the potential consequences. Even though he was in a position to have greatly assisted the Tribunal, his failure to do so, is to some degree explicable, by reason of the potential adverse consequences to him, of doing so. Even if called, he may have legitimately refused to answer questions.

    g)The Applicant’s mother on the other hand, could easily have provided a statement, or given evidence. Her evidence may have been of assistance to the Tribunal and would have involved no obvious risk to her welfare. Her evidence may have corroborated the Applicant’s claims to have been unaware of the 2007 application. She could at least have given evidence about her knowledge, or lack thereof, concerning the 2007 application. The Applicant’s failure to even provide a statement from her is sufficient, in my view to raise an adverse inference about the evidence that she may have given.

    h)I am unable in these circumstances, to be satisfied that the Applicant’s evidence that he was not a party to, or complicit in, the attempted fraud in 2007, should be accepted.

    i)The Tribunal is left in a position where it accepts “that there is a chance that the Applicant is a person of good character”.[18] However, the Tribunal is not satisfied that the Applicant is a person of good character.

    [17] 20 January 2022.

    [18] BOY 19.

11. The Applicant may of course reapply at some later date, if he wishes to do so.

    DECISION

    The Tribunal affirms the decision under review.

    .................[sgnd]...................................

    Legal Associate

    Dated:   21 July 2023

Date of hearing:	6 July 2023
Advocate for the Applicant:	Ms Stephanie Margush Beena Rezaee Legal and Migration
Advocate for the Respondent:	Ms Jessica Fenech HWL Ebsworth Lawyers

Annexure A – List of Exhibits

Exhibit no.	Lodged by	Document
1	Applicant	Statement of Facts, Issues and Contentions and Annexures filed 6 April 2023: -    Annexure A – Identity Documents from Pakistan (with index) -    Annexure B – Statutory Declaration from the Applicant (24.03.2023) -    Annexure C – Applicant’s AFP Clearance Certificate (15.04.2023) -    Annexure D – Character References -    Annexure E – Records of UNCHR Donations
2	Respondent	Statement of Facts, Issues and Contentions filed 6 May 2023
3	Applicant	Applicant’s Reply to Respondent’s Statement of Facts, Issues and Contentions filed 26 May 2023
4	Respondent	T-Documents (Amended Version) filed 30 June 2022
5	Respondent	Supplementary T-Documents filed 6 September 2022
6	Applicant	Applicant’s Bundle of Documents comprising of birth certificates, death certificate, passport, national identity cards, local certificates, education certificates, utility bills and UNHCR card filed 16 September 2022
7	Applicant	List of Authorities filed 4 July 2023
8	Applicant	English Translation of Hedayatullah Ramezan of Form 956 filed 5 July 2023
9	Respondent	Copy of Applicant’s offshore humanitarian visa 2007 filed 16 December 2022
10	Respondent	Statement of Position filed 19 January 2023
11	Respondent	Bundle of Documents filed 10 March 2023: 11.1   Email from Respondent re Respondent’s position 11.2   Form 40SP (sponsorship for a partner to migrate to Australia) completed by Ms Sajida Zaffar (28.05.2013) 11.3   Birth Certificates of Applicant’s mother, father and siblings
12	Respondent	Copy of Applicant’s Form 956 filed 5 July 2023